LARRY PEPPERS v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0698-08T20698-08T2

LARRY PEPPERS,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

 

Submitted: September 30, 2009 - Decided:

Before Judges Collester and Fall.

On appeal from a Final Decision of the New Jersey Department of Corrections.

Larry Peppers, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Larry Peppers, an inmate at East Jersey State Prison, appeals from a final administrative decision of the Department of Corrections issued on September 5, 2008, finding that he had committed the prohibited act of threatening another person, contrary to N.J.A.C. 10A:4-4.1a (*.005).

The charge against appellant arose from an incident occurring on August 30, 2008. Corrections Officer Justin Sosnowski reported that at approximately 6:45 p.m. he was making his rounds in 3-Wing in New Jersey State Prison when appellant called him over to his door and asked to use the telephone. Officer Sosnowski contended that when he informed appellant that the telephone call list was full for that evening, appellant persisted in his request and when he told appellant there was nothing he could do, appellant stated, "I'll fucking slice your throat, I'll fucking kill you, you punk ass bitch." Officer Sosnowski stated that when he responded, "Excuse me, what did you say?," appellant repeated the threat.

Officer Sosnowski then requested the assistance of other officers. When they arrived, he informed them of the threat, and appellant was escorted from 3-Wing and placed in pre-hearing detention. Officer Sosnowski issued two disciplinary charged against appellant: threatening any person, contrary to N.J.A.C. 10A:4-1.1a (*.005); and conduct which disrupts the orderly operation of the correctional facility, contrary to N.J.A.C. 10A:4-1.1a (*.306). The latter charge was withdrawn. The responding officers all issued reports.

The *.005 charge was referred to Sergeant Rustemeyer for investigation, and he served appellant with the charge on August 31, 2008. Appellant pleaded not guilty, denying threatening Officer Sosnowski, contending the charge had been falsified. Appellant did not request the production of any witnesses for his disciplinary hearing; however, at his request, he was provided the assistance of counsel substitute to prepare his defense.

Appellant appeared before Disciplinary Hearing Officer John Oszvart on September 2, 2008. He denied threatening Officer Sosnowski, contending the charge had been fabricated and stating he does not use the type of language reported. Upon reviewing the evidence and reports, Hearing Officer Sosnowski adjudicated appellant guilty of having committed the prohibited act charged, noting there were no witnesses on either side; appellant had not requested a polygraph, nor had he sought confrontation with Officer Sosnowski; and concluded that Officer Sosnowski had no reason to fabricate his report of the incident. The hearing officer recommended sanctions of fifteen (15) days' detention; three hundred (300) days' administrative segregation; and three hundred (300) days' loss of commutation time.

On September 3, 2008, appellant appealed the decision of the hearing officer to Prison Administrator T.M. Power. On September 5, 2008, Assistant Prison Superintendent Robert LaForgia affirmed the adjudication and sanctions imposed, explaining that they were appropriate to the severity of the infraction. Appellant filed a timely notice of appeal with this court on October 6, 2008. By order issued on November 20, 2008, we granted appellant's motion for leave to proceed as an indigent, subject to N.J.S.A. 30:4-16.3, and denied his motion for assignment of counsel.

On appeal, appellant presents the following arguments for our consideration:

POINT ONE

THE EVIDENCE WAS INSUFFICIENT TO SUPOPRT A FINDING OF GUILT AS THE HEARING OFFICER UNFAIRLY CREDITED THE OFFICER'S REPORT OVER THE APPELLANT'S TESTIMONY IN VIOLATION OF HIS RIGHT TO DUE PROCESS AND FAIRNESS.

POINT TWO

THE HEARING OFFICER'S DECISION WAS ARBITRARY, CAPRICIOUS AND VIOLATIVE OF THE APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL HEARING.

We have carefully reviewed appellant's brief and the record on appeal and conclude that his arguments, including his constitutional claims, are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following observations.

N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

The record discloses that respondent adhered to all appropriate procedural safeguards by providing appellant notice of the charge; an opportunity to be heard; the right to call witnesses; the right of confrontation; the appointment of substitute counsel to assist in his defense; and issuance of a written decision setting forth the basis for the adjudication. See Avant, supra, 67 N.J. at 525-33. We conclude there was substantial evidence in the record to support the decision, and we cannot find that either the decision or the sanction imposed were arbitrary, capricious or unreasonable. Appellant's contention that the hearing officer failed to resolve the credibility issue is without merit. The hearing officer credited Officer Sosnowsky's description of the incident, finding nothing to support appellant's contention that the charge had been fabricated. Moreover, the sanction imposed was fully appropriate, since "[m]aintaining discipline within law enforcement agencies is important for the safety and security of the public." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We find no basis to the disturb the decision here.

 
Affirmed.

N.J.S.A. 30:4-16.3 provides for payment of a partial filing fee by an inmate in, inter alia, a prison disciplinary appeal in accordance with a statutory formula, and prescribes a procedure for seeking relief from the partial fee assessment in exceptional circumstances.

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A-0698-08T2

October 23, 2009